liberty

Liberty

The state of being free; enjoying various social, political, or economic rights and privileges The concept of liberty forms the core of all democratic principles. Yet, as a legal concept, it defies clear definition.

The modern conception of liberty as implying certain fundamental or basic rights dates back to the writings of seventeenth- and eighteenth-century theorists such as Francis Hutcheson and John Locke. Hutcheson believed that all people are equal and that they possess certain basic rights that are conferred by Natural Law. Locke postulated that humans are born with an innate tendency to be reasonable and tolerant. He also believed that all individuals are entitled to liberty under the natural law that governed them before they formed societies. Locke's concept of natural law required that no one should interfere with another's life, health, liberty, or possessions. According to Locke, governments are necessary only to protect those who live within the laws of nature from those who do not. For this reason, he believed that the power of government and the rule of the majority must be kept in check, and that they are best controlled by protecting and preserving individual liberties. Locke's philosophies gave rise to the Separation of Powers and the system of checks and balances that are the basis of U.S. government.Limitless freedom is untenable in a peaceful and orderly society. Yet, the founders of the United States were concerned that individual liberty interests be adequately protected. Echoing Locke's natural-law theory, the Declaration of Independence states that all people have inalienable rights, including the right to life, liberty, and the pursuit of happiness. Similarly, the Preamble to the Constitution outlines the Framers' intent to establish a government structure that ensures freedom from oppression. It reads, in part, "We the People … in Order to … secure the Blessings of Liberty to ourselves and our Posterity…." The Bill of Rights sets forth a number of specific protections of individual liberties.

Through these documents, U.S. citizens are guaranteed Freedom of Speech, press, assembly, and religion; freedom from unreasonable searches and seizures; and freedom from Slavery or involuntary servitude. Criminal law and procedure require that a person may not be detained unlawfully and that a person who is accused of a crime is entitled to reasonable bail and a Speedy Trial. The right to be free from unlawful detention has been interpreted to mean not only that the government may not deprive a person of liberty without Due Process of Law, but also that a citizen has a right "to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his living by any lawful calling; and to pursue any livelihood or vocation" (Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832 [1897]). State governments may not regulate individual freedom except for a legitimate public purpose and only by means that are rationally designed to achieve that purpose (see Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 [1934]).

The liberties guaranteed to individuals are not granted without restriction. Throughout U.S. history, the U.S. Supreme Court has held that individual freedom may be restricted when necessary to advance a compelling government interest, such as public safety, national security, or the protection of the rights of others. Countless cases have litigated the parameters of justifiable government restriction. In one such case, Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the Court found that the content of a message delivered in a public forum may be restricted if the restriction serves a compelling state interest and is narrowly drawn to achieve that interest. Restrictions on speech in a public forum also may be upheld if the expressive activity being regulated is a of type that is not entitled to full First Amendment protection, such as Obscenity. If a restriction on speech deals only with the time, place, and manner of the activity, it need only serve a significant government interest and allow ample alternative channels of communication (see Perry). In such an instance, the law does not need to be the least restrictive alternative; it is necessary only that the government's interest would be achieved less effectively without it and that the means chosen are not substantially broader than necessary to achieve the interest (Ward v. Rock against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).

The Court has held that the government may infringe on a person's freedom of association by punishing membership in an organization that advocates illegal conduct if the defendant had knowledge of the group's illegal objectives and had the Specific Intent to further them (see Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 [1961]; Noto v. United States, 367 U.S. 290, 81 S. Ct. 1517, 6 L. Ed. 2d 836 [1961]).

The Court has also determined that when competing liberty interests clash, the majority may not necessarily impose its belief on the minority. In abington school district v. schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963), the Court held that the freedom to exercise one's religion does not extend to prayer sessions in public schools, even if the proposed prayer is nondenominational and favored by the majority. Justice tom c. clark, writing for the majority, emphasized that the freedom to exercise one's religion ends when it infringes on another's right to be free from state-imposed religious practices. He wrote, "While the Free Exercise Clause clearly prohibits the use of State Action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs." The Court reaffirmed its holding that the Free Exercise Clause does not allow the majority to impose its beliefs on the minority in wallace v. jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29 (1985).

The Court has engendered bitter and sustained controversy with its defense of privacy rights in cases such as roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which found the constitutional right to privacy to include the right to obtain an Abortion. Critics of such decisions contend that such liberties are not enumerated in the Constitution and that the Court should uphold only rights found in the Constitution. But the Court has consistently held that the liberties enumerated in the Constitution are a continuum that, in the words of Justice John Marshall Harlan, "includes a freedom from all substantial Arbitrary impositions and purposeless restraints … and which also recognizes … that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement" (Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 [1961]).

The Court justified its findings of liberty rights that are not enumerated in the Constitution by stating that some rights are basic and fundamental, and that the government has a duty to protect those rights. It has held that the Constitution outlines a "realm of personal liberty which the government may not enter." As an example, it noted that marriage is not mentioned in the Bill of Rights and that interracial marriage was illegal in many places during the nineteenth century, but that the Court has rightly found these activities to be within the liberty interests guaranteed by the Constitution.

The Court has repeatedly held that individual liberties must be protected no matter how repugnant some find the activity or individual involved. For example, in Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 28 674 (1992), the Court stated, "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code." In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), the Court invalidated a law mandating that all students salute the flag, and in texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), it invalidated a law prohibiting burning of the flag. In all of these cases, the Court emphasized that individuals may disagree about whether the activity is morally acceptable, but the liberty inherent in the activity may not be proscribed even if a majority of the populace thinks that it should be.

Justice louis d. brandeis summarized the Court's general wariness of government intrusion into liberty interests, in Whitney v. California, 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927): "Those who won our independence believed that the final end of the state was to make men free." The Court will continue to grapple with the extent to which organized society may restrict individual liberty without violating that mandate.

Cross-references

liberty

n. freedom from restraint and the power to follow one's own will to choose a course of conduct. Liberty, like freedom, has its inherent restraint to act without harm to others and within the accepted rules of conduct for the benefit of the general public.

LIBERTY. Freedom from restraint. The power of acting as one thinks fit,
without any restraint or control, except from the laws of nature.
2. Liberty is divided into civil, natural, personal, and political.
3. Civil liberty is the power to do whatever is permitted by the
constitution of the state and the laws of the land. It is no other than
natural liberty, so far restrained by human laws, and no further, operating
equally upon all the citizens, as is necessary and expedient for the general
advantage of the public. 1 Black. Com. 125; Paley's Mor. Phil. B. 6, c.5;
Swifts Syst. 12
4. That system of laws is alone calculated to maintain civil liberty,
which leaves the citizen entirely master of his own conduct, except in those
points in which the public good requires some direction and restraint. When a
man is restrained in his natural liberty by no municipal laws but those
which are requisite to prevent his violating the natural law, and to promote
the greatest moral and physical welfare of the community, he is legally
possessed of the fullest enjoyment of his civil rights of individual
liberty. But it must not be inferred that individuals are to judge for
themselves how far the law may justifiably restrict their individual
liberty; for it is necessary to the welfare of the commonwealth, that the
law should be obeyed; and thence is derived the legal maxim, that no man may
be wiser than the law.
5. Natural liberty is the right which nature gives to all mankind, of
disposing of their persons and property after the manner they judge most
consonant to their happiness, on condition of their acting within the limits
of the law of nature, and that they do not in any way abuse it to the
prejudice of other men. Burlamaqui, c. 3, s. 15; 1 Bl. Com. 125.
6. Personal liberty is the independence of our actions of all other
will than our own. Wolff, Ins. Nat. Sec. 77. It consists in the power of
locomotion, of changing situation, or removing one's person to whatever
place one's inclination may direct, without imprisonment or restraint,
unless by due course of law. 1 Bl. Com. 134.
7. Political liberty may be defined to be, the security by which, from
the constitution, form and nature of the established government, the
citizens enjoy civil liberty. No ideas or definitions are more
distinguishable than those of civil and political liberty, yet they are
generally confounded. 1 Bl. Com. 6, 125. The political liberty of a state is
based upon those fundamental laws which establish the distribution of
legislative and executive powers. The political liberty of a citizen is that
tranquillity of mind, which is the effect of an opinion that he is in
perfect security; and to insure this security, the government must be such
that one citizen shall not fear another.
8. In the English law, by liberty is meant a privilege held by grant or
prescription, by which some men enjoy greater benefits than ordinary
subjects. A liberty is also a territory, with some extraordinary privilege.
9. By liberty or liberties, is understood a part of a town or city, as
the Northern Liberties of the city of Philadelphia. The same as Fanbourg.
(q.v.)

The index is contained in a new book, Towards a Worldwide Index of Human Freedom, which examines the characteristics of "freedom" and how it can best be measured and compared between different nations.

Thysell offers detailed comparisons of Calvin's and the spiritual libertines' views on crucial theological questions: fallen human nature, divine providence, human freedom, and the role of the will in salvation.

He now asks "how it is possible for the most standardized and uniform social reality in history, by the merest ideological flick of the thumbnail, the most imperceptible of displacements, to reemerge as the rich oil-smear sheen of absolute diversity and of the unimaginable and unclassifiable forms of human freedom.

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